Okiya Omtatah Okoiti v National Environment Management Authority & 9 others [2021] KEELC 2647 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld the SGR's Nairobi National Park environmental licence but confirmed that genuine public-interest litigants should not be punished with costs.
What this practically means
#Executive summary
#Key legal issues
#Competence of the appeal without the decree/order
The appeal was competent because a copy of the judgment, duly signed by members of the Tribunal, was included in the record of appeal
Order 42 rule 13(4)(f) requires inclusion of the judgment, order or decree appealed from. The record contained the judgment at page 11, duly signed by Tribunal members, so the requirement was satisfied and the objection to competence was rejected.
Jurisdiction over Tribunal composition
The court has no jurisdiction on a Section 130 EMCA appeal to determine the qualifications of Tribunal members appointed under Section 125; the proper forum is appropriate proceedings in the appropriate court against those members
Section 129 confines the Tribunal to appeals against NEMA decisions; the ELC's appellate jurisdiction under Article 162(2)(b), Section 13 ELC Act and Section 130 EMCA is correspondingly limited and does not extend to reviewing ministerial appointments. Further, Tribunal members are not parties to the appeal.
Alleged bias of the Tribunal
Bias was not established; the objective test for judicial bias was not satisfied
The appellant failed to seek a stay of proceedings after filing the petition on Tribunal composition; no evidence showed any Tribunal member took a partisan position; the impugned remarks were a proper caution regarding representation without a notice of appointment; the 10th respondent never appealed the ruling on its evidence.
Procedural technicalities and the 10th respondent's evidence
The Tribunal properly held that only the appellant had an appeal since the 10th respondent did not sign the notice of appeal as required by rule 4(4) of the NET Rules of Procedure
Rules of procedure are the handmaiden of justice under Article 48; failure to present a properly signed appeal went to the root of the appeal. The appellant could have applied to present the witnesses as his own but elected to leave the trial venue.
Substantive findings of the Tribunal
The Tribunal's findings on public participation, the sufficiency of the EIA report, non-requirement of parliamentary approval under Article 71, and mitigation measures were upheld
The Tribunal addressed all material issues raised in the appeal under four broad issues. As a first appellate court, the judge would not interfere with findings of fact absent no evidence, misapprehension of evidence, or wrong principles. He agreed entirely with the finding that parliamentary approval under Article 71 was unnecessary.
Public-interest litigation and costs
The Tribunal erred in condemning the appellant to pay costs because the appeal was filed in the public interest under Articles 22, 69 and 70 of the Constitution; the costs order was set aside
Article 69(1)(d) encourages public participation in environmental management; Article 70 confers locus on every citizen; Article 22 confers the right to enforce Bill of Rights. With no personal gain, the litigation was for the general public good, and costs should not have been imposed.
Legal principles established
#- When exercising appellate jurisdiction under Section 130 of the EMCA, the mandate of the Environment and Land Court is limited to re-appraising evidence and examining the law in relation to impugned NEMA decisions under Section 129; it does not include reviewing ministerial decisions under Section 125 of the EMCA
- The test for alleged judicial bias is objective and the facts constituting bias must be specifically alleged and established
- A litigant who files a petition challenging the composition of a tribunal should seek an order of stay of proceedings; in the absence of such an order the tribunal properly disposes the appeal before it
- Under Articles 22, 69 and 70 of the Constitution, public-interest environmental litigation does not attract punitive costs against the litigant where there is no personal gain
Court orders
#- 1.Save as set out in disposal order (b), the appeal is declined for lack of merit
- 2.The order of the National Environment Tribunal awarding the respondents costs of the appeal in NET/200/2017 is set aside and substituted with an order that parties shall bear their respective costs of Tribunal Appeal No NET/200/2017
- 3.Parties to the present appeal shall bear their respective costs of the appeal
- On appeal from
- National Environment Tribunal
- NET/200/2017
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read together with Section 13 of the Environment and Land Court Act and Section 130 of the EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v National Environment Management Authority & 9 others [2021] KEELC 2647 (KLR)", Case Analysis (2021). Nairobi ELC Appeal No 75 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2647/eng@2021-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.